Supreme Court of California Justia
Citation 51 Cal. 4th 717, 248 P.3d 1185, 122 Cal. Rptr. 3d 331

Bruns v. E-Commerce Exch.

Filed 2/28/11

IN THE SUPREME COURT OF CALIFORNIA

DANA BRUNS,
Plaintiff and Appellant,
S172684
v.
Ct.App. 2/5 B201952
E-COMMERCE EXCHANGE, INC., et al., )

Los Angeles County
Defendants and Respondents. )
Super. Ct. No. JCCP 4350

Code of Civil Procedure section 583.310,1 which governs the action plaintiff Dana
Bruns brought against defendants E-Commerce Exchange, Inc., et al., requires an action
“be brought to trial within five years after the action is commenced against the
defendant.” Otherwise, dismissal of the action is “mandatory and . . . not subject to
extension, excuse, or exception except as expressly provided by statute.” (§ 583.360,
subd. (b).) In this case, we must construe two statutory exclusions to the five-year
period, specifically those stated in section 583.340, subdivisions (b) and (c). 2
First, in computing the time within which an action must be brought to trial, courts
must exclude the time during which “[p]rosecution or trial of the action was stayed or
enjoined.” (§ 583.340(b).) During the nearly seven years that plaintiff‟s case was
pending before it was dismissed, the trial court ordered stays of all the proceedings in
plaintiff‟s action, as well as partial stays, such as stays of discovery and other specific

1
All statutory references are to the Code of Civil Procedure unless otherwise noted.
2
We will refer to section 583.340, subdivisions (b) and (c), as section 583.340(b) or
section 583.340(c).
1


proceedings. We first address whether a stay of the “prosecution” of the action under
section 583.340(b) includes a stay of specific proceedings, such as a stay of discovery,
while other aspects of the action may go forward. We conclude, contrary to the Court of
Appeal, that the prosecution of an action is stayed under subdivision (b) only when the
stay encompasses all proceedings in the action.
Second, in computing the time within which an action must be brought to trial,
courts must exclude the time during which “[b]ringing the action to trial, for any other
reason, was impossible, impracticable, or futile.” (§ 583.340(c).) We will discuss the
standard trial courts should employ under section 583.340(c) and the standard of
appellate review of a trial court‟s ruling under that provision. Finally, we will remand the
matter to the Court of Appeal to review the trial court‟s ruling in a manner consistent
with our opinion.
I. PROCEDURAL HISTORY
On February 22, 2000, plaintiff Dana Bruns filed a suit against a number of
defendants for allegedly transmitting advertisements by telephone facsimile machine that
violated the Telephone Consumer Protection Act of 1991. (47 U.S.C. § 227(b)(1)(C).)
On November 22, 2006, one defendant moved to dismiss plaintiff‟s fifth amended
complaint because the five-year period for plaintiff to bring her action to trial had
elapsed. The other defendants joined the motion. In response, plaintiff argued that
certain periods of time had to be excluded from the five-year period under subdivision (b)
or (c), or both, of section 583.340.3 On January 25, 2007, after hearing the motion to
dismiss, the court stayed all proceedings and requested briefing regarding the specific

3
Because we will remand the matter to the Court of Appeal to apply the law as
stated in this opinion, we see no need to recite the details concerning the disputed time
periods, which are complex. For example, one defendant presented over 1,000 pages of
documents and almost 300 exhibits in support of dismissing the action.
2


litigation that had taken place during the periods plaintiff claimed should be excluded
from the five-year period. Ultimately, the trial court granted the motion to dismiss.
Plaintiff appealed. The Court of Appeal reversed the dismissal and remanded the
matter to the trial court. It held that periods of time in which there was a partial stay of
proceedings had to be excluded from the five-year period under 583.340(b), which
reduced the total elapsed time to less than five years. The dissenting justice concluded
that the Legislature intended the stay language in section 583.340 to involve only a
“complete, as distinguished from a partial, stay.” We granted review.
II. DISCUSSION
“An action shall be brought to trial within five years after the action is
commenced against the defendant.” (§ 583.310.) Section 583.340, the statute at issue
here, provides as relevant: “In computing the time within which an action must be
brought to trial pursuant to this article, there shall be excluded the time during which any
of the following conditions existed: [¶] . . . [¶] (b) Prosecution or trial of the action was
stayed or enjoined. [¶] (c) Bringing the action to trial, for any other reason, was
impossible, impracticable, or futile.” We must construe both subdivision (b) and
subdivision (c) of this section.
The parties do not dispute that this lawsuit is an “action” within the meaning of
these provisions. “As used in this chapter, unless the provision or context otherwise
requires: [¶] (a) „Action‟ includes an action commenced by cross-complaint or other
pleading that asserts a cause of action or claim for relief.” (§ 583.110, subd. (a).) This
action was commenced on February 22, 2000, when plaintiff filed the original complaint.
(See Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000, 1010-1011 [an
action is commenced within the meaning of section 583.310 upon the filing of the
plaintiff‟s original complaint].) It is also undisputed that this action was not brought to
trial within five years of this date. “ „A “trial” within the meaning of section 583 is the
3
determina[tion] of an issue of law or fact which brings the action to the stage where final
disposition can be made.‟ [Citation.]” (Briley v. Sukoff (1979) 98 Cal.App.3d 405, 410.)
A case is brought to trial if it has been assigned to a department for trial, it is called for
trial, the attorneys have answered that they are ready for trial, and proceedings begin,
even if the proceeding is a motion for judgment on the pleadings. (Katleman v. Katleman
(1959) 175 Cal.App.2d 493, 496-497.) In an action tried to a jury, the action is brought
to trial when the jury is impaneled and sworn. (Hartman v. Santamarina (1982) 30
Cal.3d 762, 765-767.) None of this had happened by the time defendants filed their
motion to dismiss under section 583.340, more than five years after plaintiff filed the
complaint.
But plaintiff argues that certain periods should have been excluded from the
statutory time, reducing the elapsed time from commencement of the action to less than
five years. The Court of Appeal agreed with plaintiff. It held, and plaintiff argues, that
“a partial stay of an action constitutes a stay of the prosecution of the action within the
meaning of section 583.340, subdivision (b).”
We will first discuss the proper interpretation of section 583.340(b). Because we
conclude it applies only when a stay encompasses all proceedings in the action and does
not include partial stays, we will also discuss the extent to which section 583.340(c) may
apply.
A. Code of Civil Procedure section 583.340(b)
We must decide whether section 583.340(b) applies to a stay of any part of the
proceeding or only to a complete stay of the entire action. Statutory interpretation is a
question of law that we review de novo. (Regents of University of California v. Superior
Court (1999) 20 Cal.4th 509, 531.) “Our fundamental task in interpreting a statute is to
determine the Legislature‟s intent so as to effectuate the law‟s purpose. We first examine
the statutory language, giving it a plain and commonsense meaning. We do not examine
4
that language in isolation, but in the context of the statutory framework as a whole in
order to determine its scope and purpose and to harmonize the various parts of the
enactment. If the language is clear, courts must generally follow its plain meaning unless
a literal interpretation would result in absurd consequences the Legislature did not intend.
If the statutory language permits more than one reasonable interpretation, courts may
consider other aids, such as the statute‟s purpose, legislative history, and public policy.”
(Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733,
737.)
Section 583.340(b)‟s language does not definitively answer whether partial stays
generally are excluded from the five-year period under section 583.340. It provides that
those times must be excluded from the five-year time period in which “[p]rosecution or
trial of the action was stayed or enjoined.” (§ 583.340(b).) Nothing was enjoined in this
case, so the operative word here is “stayed.” The term “stay,” by itself, could refer to
either a partial or a complete cessation of proceedings. A stay “freezes” a court‟s
proceedings at a particular point. (Black‟s Law Dict. (5th ed. 1979) p. 1267, col. 1.) “It
can be used to stop the prosecution of the action altogether, or to hold up only some
phase of it, such as an execution about to be levied on a judgment.” (Ibid., italics
added.).
In Holland v. Dave Altman’s R. V. Center (1990) 222 Cal.App.3d 477, the Court
of Appeal addressed the meaning of the term “stay” in section 583.340(b). “[T]he term
[“stay”] appears to have a commonly understood meaning as an indefinite postponement
of an act or the operation of some consequence, pending the occurrence of a designated
event. Thus, in People v. Santana (1986) 182 Cal.App.3d 185, 190 . . . , a case involving
the stay of a sentence, the court concluded that „[a] stay is a temporary suspension of a
procedure in a case until the happening of a defined contingency.‟ Black‟s Law
Dictionary [, supra, at] page 1267 defines the term as „a suspension of the case or some
designated proceedings within it.‟ ” (Holland, supra, 222 Cal.App.3d at p. 482.)
5
Relying on Holland, plaintiff argues that a “stay” under subdivision (b) is “an indefinite
suspension of the entirety of the case or designated acts/proceedings within it that yield
the practical inability (as opposed to „complete‟ or „absolute‟ inability) to proceed to
trial.” But Holland does not support this position. Holland gave examples of time
periods during which the case could not be brought to trial. They included the “absence
of trial court jurisdiction to try [the case]” and “a court order barring the trial (by a stay or
injunction).” (Id. at p. 482.) Holland did not address whether the “prosecution” of the
action was stayed within the meaning of section 583.340 when only a designated
proceeding in a case, other than a trial, was stayed or suspended “until the happening of a
defined contingency.” (People v. Santana, supra, 182 Cal.App.3d at p. 190.)
Because the word “stay” is ambiguous in this context, we turn to what must be
stayed. Only when the “prosecution” or “the trial” of the “action” is stayed does running
of the five-year period halt under 583.340(b). The trial was never stayed in this case; we
therefore focus on the meaning of the word “prosecution.” The word originally meant
the “ „carrying out of any action, scheme, or purpose, with a view to its accomplishment
or attainment.‟ ” (Garner, Dict. of Modern Legal Usage (2d ed. 1995) p. 706.) As
relevant here, Webster‟s New World Law Dictionary defines “prosecution” as “[a]
pursuing of a lawsuit.” (Webster‟s New World Law Dict. (2006) p. 210.) In a legal
context, “prosecution” has been defined, “[a]s applied to actions or suits generally, [as]
the following up or carrying on of an action or suit already commenced until the remedy
be attained . . . .” (32 Cyclopedia of Law & Procedure (1909) p. 727.) “In its broadest
sense the term would embrace all proceedings . . . for the protection or enforcement of a
right or the punishment of a wrong, whether of a public or private character. ” (Id. at p.
728, fn. 5, italics added; see Ray Wong v. Earle C. Anthony, Inc. (1926) 199 Cal. 15, 18
(Wong) [“The term „prosecution‟ is sufficiently comprehensive to include every step in
an action from its commencement to its final determination,” citing 32 Cyclopedia of
6
Law & Procedure, supra, at p. 727]; Melancon v. Superior Court (1954) 42 Cal.2d 698,
707-708 (Melancon) [same].)
Wong involved an action for malicious prosecution stemming from the alleged
malicious filing of a criminal complaint against Wong, the ensuing issuance of an arrest
warrant in Sacramento County, Wong‟s arrest in San Joaquin County, and his criminal
trial in Sacramento County. In concluding that venue was proper in both Sacramento and
San Joaquin counties because “prosecution” of the underlying criminal action had
occurred in both counties (Wong, supra, 199 Cal. at pp. 19-20), the court explained that
“[t]he term „prosecution‟ is sufficiently comprehensive to include every step in an action
from its commencement to its final determination.” (Id. at p. 18, italics added.) Relying
on Wong, the Melancon court noted that the taking of depositions constitutes “a step in
the „prosecution‟ ” of an action. (Melancon, supra, 42 Cal.2d at p. 707.)
The Court of Appeal majority, agreeing with plaintiff‟s argument, construed
Melancon “as standing for the proposition that the „prosecution‟ of an action is a broad
concept encompassing all of the various steps in an action, including, but not limited to,
pleading, discovery, and law and motion.” It then reasoned that “[e]ach of the various
steps in an action constitutes „prosecution‟ of that action” under section 583.340(b).
However, Melancon stands only for the proposition that the entire action, including every
step in it such as the taking of depositions, is stayed when a motion to post security is
filed. Neither Wong nor Melancon considered the issue here.
Accordingly, in isolation, section 583.340(b)‟s language is ambiguous. A stay of
“prosecution” under subdivision (b) reasonably could mean either a stay of any individual
or incremental step in an action or a stay of all the proceedings in an action. However,
“[w]e do not examine [statutory] language in isolation, but in the context of the statutory
framework as a whole in order to determine its scope and purpose and to harmonize the
various parts of the enactment.” (Coalition of Concerned Communities, Inc. v. City of
Los Angeles, supra, 34 Cal.4th at p. 737.)
7
We granted review in this case not to consider the language of section 583.340(b)
in isolation; rather we are resolving whether only a complete stay of all the proceedings
operates to toll the running of the five-year period by which a case must be brought to
trial, or whether partial stays of proceedings are sufficient. To answer this inquiry, we
must read subdivision (b) together with subdivision (c). When the statute is read as a
whole, it becomes apparent that subdivision (b) contemplates a bright-line,
nondiscretionary rule that excludes from the time in which a plaintiff must bring a case to
trial only that time during which all the proceedings in an action are stayed. Subdivision
(c) gives the trial court discretion to exclude additional periods, including periods when
partial stays were in place, when the court concludes that bringing the action to trial was
“impossible, impracticable, or futile.” Obviously, if a complete stay is in effect, bringing
the action to trial is impossible. It makes sense for the Legislature to state a bright-line
rule in this situation. The effect of a partial stay, however, can vary from stay to stay and
from case to case. A partial stay might, or might not, make it “impossible, impracticable,
or futile” to bring the action to trial. As discussed below, when the effect of a partial stay
is raised by a plaintiff under section 583.340, the trial court must determine whether or
not subdivision (c) applies to that partial stay.
This conclusion is bolstered by comparing and harmonizing section 583.340(b)‟s
language with the language of a different but related statute, as well as by reviewing
section 583.340‟s legislative history.
When it enacted section 583.340, the Legislature also enacted provisions
governing the time within which service of summons must be made. (See Sen. Bill No.
1366 (1983-1984 Reg. Sess.), enacted as Stats. 1984, ch. 1705, § 5, p. 6176.) Section
583.210 provides generally that the “summons and complaint shall be served upon a
defendant within three years after the action is commenced against the defendant.” This
mandatory provision is similar to section 583.310‟s five-year period within which to
bring an action to trial. The Legislature enacted exclusions to the computation of this
8
three-year period similar to the exclusions in section 583.340. Specifically, section
583.240 provides: “In computing the time within which service must be made pursuant to
this article, there shall be excluded the time during which any of the following conditions
existed: [¶] . . . [¶] (b) The prosecution of the action or proceedings in the action was
stayed and the stay affected service.” (§ 583.240(b), italics added.) The italicized
language shows the Legislature knows how to specifically reference a partial stay, in
addition to a complete stay, when that is its intent. The Legislature‟s failure to include in
section 583.340(b) an express consequence for staying a specific proceeding within an
ongoing prosecution is significant, given the presence of such an expression in section
583.240. (See Martinez v. Regents of University of California (2010) 50 Cal.4th 1277,
1295-1296 [failure to include a requirement in one statute is significant when the
legislative body has included that requirement in other statutes]; Bernard v. Foley (2006)
39 Cal.4th 794, 811 [Legislature‟s failure to include an express friendship exception in
statutory scheme was significant because Legislature has shown it knows how to craft
one].) When one provision in a bill refers to the stay of prosecution or proceedings in the
action, and another provision refers only to a stay of the prosecution, the inference is
compelling that the latter reference is only to a complete stay and does not encompass a
limited stay.
This inference is especially strong given that section 583.340(b) and section
583.240 were adopted as part of the same Senate bill. (See County of San Bernardino v.
City of San Bernardino (1997) 15 Cal.4th 907, 943; Faulder v. Mendocino County Board
of Supervisors (2006) 144 Cal.App.4th 1362, 1369-1370 [when Legislature uses
materially different language in statutory provisions addressing related subjects, the
normal inference is that the Legislature intended a difference in meaning].) To embrace
plaintiff‟s position that section 583.340(b) encompasses individual steps or proceedings
in a prosecution, we would have to engraft onto subdivision (b) an exception that the
Legislature explicitly included in section 583.240 but did not include in section
9
583.340(b). We decline to rewrite the statute to exclude from the mandatory time in
which an action must be brought to trial the time during which individual proceedings are
stayed.
The legislative history of section 583.340 and related statutes enacted in 1984 also
supports this conclusion. The Legislature enacted section 583.340 in 1984 when it added
chapter 1.5 to title 8 of part 2 of the Code of Civil Procedure to regulate dismissals for
delay of prosecution. (Stats. 1984, ch. 1705, § 5, pp. 6173, 6179.) The Assembly
Committee on Judiciary summarized the purpose of Senate Bill No. 1366 (1983-1984
Reg. Sess.) as follows: “According to the California Law Revision Commission (LRC),
the source, this bill „is a comprehensive revision of the statutes governing dismissal of
civil actions for delay in prosecution. The major purpose of the bill is to clarify
ambiguities in the law, to bring the statutes into conformity with case law interpreting
them, and to reconcile discrepancies in statutes and cases. The bill also makes a number
of modest substantive changes to improve the operation of the statutes. The effect of the
changes is to encourage . . . disposition of civil actions on the merits rather than dismissal
on procedural technicalities.‟ LRC explains that the existing provisions which this bill
would repeal are unduly inflexible and subject to numerous implied exceptions in case
law.” (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1366 (1983-1984 Reg. Sess.) as
amended July 3, 1984, p. 3.)
The Law Revision Commission explained the need for a comprehensive,
unambiguous new set of statutes on dismissal for lack of prosecution. “The policy of the
dismissal statutes conflicts with another strong public policy—that which seeks to
dispose of litigation on the merits rather than on procedural grounds. As a result of this
conflict the courts have developed numerous limitations on and exceptions to the
dismissal statutes. The statutes do not accurately state the exceptions, excuses, and
existence of court discretion. The interrelation of the statutes is confusing. The state of
the law is generally unsatisfactory, requiring frequent appellate decisions for
10
clarification.” (Revised Recommendation Relating to Dismissal for Lack of Prosecution
(June 1983) 17 Cal. Law Revision Com. Rep. (1983) p. 2, fns. omitted.) The last
footnote in the above quoted paragraph noted that “[s]ince the two dismissal statutes were
first enacted around the turn of the century there has been continuous appellate
litigation — hundreds of cases, the notation of which requires more than 100 pages in the
annotated codes — interpreting, clarifying, and rewriting the statutes.” (Id., at p. 2, fn.
12.)
Explaining its recommendation for a comprehensive, unambiguous set of statutes
dealing with dismissal for lack of prosecution, the Law Revision Commission reasoned
that “[f]luctuations in basic procedural policy are undesirable. Every policy shift
generates additional litigation to establish the bounds of the law. The policy of the state
towards dismissal for lack of prosecution should be fixed and codified, and the dismissal
statutes should be construed consistently with this policy.” (Revised Recommendation
Relating to Dismissal for Lack of Prosecution (June 1983) 17 Cal. Law Revision Com.
Rep., supra, at p. p. 3.)
The proposed legislation included section 583.340. The Law Revision
Commission‟s comment to section 583.340(b) states that “[s]ubdivision (b) codifies
existing case law. See, e.g., Marcus v. Superior Court [(1977)] 75 Cal.App.3d 204 [],
[212-213] . . . .” (Cal. Law Revision Com. com., 16 West‟s Ann. Code Civ. Proc. (2011
supp.) foll. § 583.340, p. 238.) Marcus involved a stay of all judicial proceedings
pending the outcome of an arbitration proceeding. (See §§ 1281.2, 1281.4; Marcus,
supra, 75 Cal.App.3d at pp. 207-208.) Marcus concluded that granting such a stay would
not subject the petitioner to the risk of mandatory dismissal for failure to prosecute within
five years because the time of the stay would be excluded from the five-year period.
(Marcus, supra, 75 Cal.App.3d at pp. 212-213.) The court premised its determination
that “[w]hile the stay order is in effect, it will be impossible or impracticable to proceed
to trial” (id. at p. 213) on its recognition that a stay pending arbitration would constitute a
11
stay “ „as to all issues, as to all causes of action, and as to all parties, until arbitration is
concluded . . . .‟ ” (Id. at p. 209, quoting Cook v. Superior Court (1966) 240 Cal.App.2d
880, 885.) Although Marcus did not consider the effect of a partial stay, the fact that the
Law Revision Commission cited only that case to support its statement that subdivision
(b) codified existing case law suggests that the subdivision applies only to complete
stays.
Plaintiff argues that the general policy in favor of trial on the merits (§ 583.130)
supports a broad interpretation of section 583.340(b). But our interpretation of
subdivision (b) is consistent with this policy. This is because subdivision (b) is not the
only exclusion from the five-year time period. When it enacted subdivision (b) of section
583.340, the Legislature also enacted the more flexible subdivision (c) of the provision,
which permits trial on the merits when appropriate in situations not governed by
subdivision (b).
Plaintiff also cites California Rules of Court, rule 3.5154 (former rule 1514), in
support of her position. But that rule does not govern this situation. Rule 3.515(j)
provides that “[t]he time during which any stay of proceedings is in effect under the rules
in this chapter must not be included in determining whether the action stayed should be
dismissed for lack of prosecution under chapter 1.5 (§ 583.110 et seq.) of title 8 of part 2
of the Code of Civil Procedure.” (Italics added.) Rule 3.515(j) is part of chapter 7 of title
3 of the California Rules of Court. Title 3 contains the civil rules, and chapter 7 of title 3
deals specifically with the coordination of complex actions. Rule 3.515 concerns motions
for “an order under Code of Civil Procedure section 404.5[5] staying the proceedings in
any action being considered for, or affecting an action being considered for,

4
All further references to rules are to the California Rules of Court.
5
Section 404.5 provides: “Pending any determination of whether coordination is
appropriate, the judge making that determination may stay any action being considered
for, or affecting an action being considered for, coordination.”
12


coordination. . . .” (Rule 3.515(a).) When a party moves for such a stay, the motion
“may be included with a petition for coordination or may be served and submitted to the
Chair of the Judicial Council and the coordination motion judge by any party at any time
prior to the determination of the petition.” (Ibid.) Here, the trial court below excluded
from the five-year period one particular time segment, during which a complete stay
relating to a petition for coordination was in effect. Defendants do not dispute the
propriety of that ruling, and we conclude rule 3.515 does not otherwise apply to this case.
Plaintiff contends it would be “anomalous” for partial stays of prosecution
imposed under rule 3.515 to be excluded from the five-year computation under section
583.340(b) while other partial stays would not. Rule 3.515, however, applies narrowly to
a specific motion for a stay pending a coordination motion in complex proceedings. It
applies only with regard to the rules in chapter 7 of title 3 of California Rules of Court.
We find it neither significant nor anomalous that rule 3.515 allows a different outcome
than does our general construction of section 583.340(b). Accordingly, the language in
rule 3.515(j), which only applies to the effect of a stay order made pursuant to rule
3.515(a), does not govern our construction of section 583.340.
We conclude subdivision (b) of section 583.340 governs only complete stays that
are “used to stop the prosecution of the action altogether.” (Black‟s Law Dict., supra, at
p. 1267, col. 1.) The Court of Appeal erred in concluding otherwise.
B. Code of Civil Procedure section 583.340(c)
Time periods during which a partial stay of proceedings was in effect are not
automatically excluded from the five-year limit under section 583.340(b). This does not
resolve whether partial stays are excluded from the five-year limit. It means that partial
stays are governed, if at all, by subdivision (c). That subdivision excludes from the five-
year time any periods when, for any other reason, it was “impossible, impracticable, or
13
futile” to bring the case to trial. (§ 583.340(c).) Plaintiff also relies on this provision in
arguing the trial court should not have dismissed the action.
Under 583.340(c), the trial court must determine what is impossible,
impracticable, or futile “in light of all the circumstances in the individual case, including
the acts and conduct of the parties and the nature of the proceedings themselves.
[Citations.] The critical factor in applying these exceptions to a given factual situation is
whether the plaintiff exercised reasonable diligence in prosecuting his or her case.”
(Moran v. Superior Court (1983) 35 Cal.3d 229, 238; see also Tamburina v. Combined
Ins. Co. of America (2007) 147 Cal.App.4th 323, 326 [trial court must determine whether
plaintiff has shown a circumstance of impossibility, impracticability, or futility, a causal
connection to the failure to move the case to trial, and that he or she was “reasonably
diligent in prosecuting the case at all stages of the proceedings”].) A plaintiff‟s
reasonable diligence alone does not preclude involuntary dismissal; it is simply one factor
for assessing the existing exceptions of impossibility, impracticability, or futility.
(Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532-1533.) “ „[E]very period
of time during which the plaintiff does not have it within his power to bring the case to
trial is not to be excluded in making the computation.‟ [Citation.]” (Sierra Nevada
Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 472.)
“Time consumed by the delay caused by ordinary incidents of proceedings, like
disposition of demurrer, amendment of pleadings, and the normal time of waiting for a
place on the court‟s calendar are not within the contemplation of these exceptions.”
(Baccus, at p. 1532.) Determining whether the subdivision (c) exception applies requires
a fact-sensitive inquiry and depends “on the obstacles faced by the plaintiff in
prosecuting the action and the plaintiff‟s exercise of reasonable diligence in overcoming
those obstacles.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424,
438.) “ „[I]mpracticability and futility‟ involve a determination of „ “excessive and
14
unreasonable difficulty or expense,” ‟ in light of all the circumstances of the particular
case.” (Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 554.)
The question of impossibility, impracticability, or futility is best resolved by the
trial court, which “is in the most advantageous position to evaluate these diverse factual
matters in the first instance.” (Brunzell Constr. Co. v. Wagner, supra, 2 Cal.3d at p. 555.)
The plaintiff bears the burden of proving that the circumstances warrant application of
the section 583.340(c) exception. (Perez v. Grajales (2009) 169 Cal.App.4th 580, 590.)
“ „The “reasonable diligence” standard is an appropriate guideline for evaluating whether
it was impossible, impracticable, or futile for the plaintiff to comply with [the statutory
five-year constraint] due to causes beyond his or her control.‟ ” (Wilshire Bundy Corp. v.
Auerbach (1991) 228 Cal.App.3d 1280, 1287-1288.) The trial court has discretion to
determine whether that exception applies, and its decision will be upheld unless the
plaintiff has proved that the trial court abused its discretion. (Perez, at pp. 590-591; see
also Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161, 164.) Although “ „ “ „part of
the five-year period must necessarily be consumed in service of process, disposition of
demurrers, amendment of the pleadings, if necessary, usual and reasonable time
consumed in waiting for a place on the court‟s calendar or in securing the attendance of a
jury and suchlike usual and necessary proceedings; . . . the section does not contemplate
that time consumed in such ordinary proceedings are to be excluded from a computation
of the five-year period.‟ ” ‟ ” (Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior
Court, supra, 217 Cal.App.3d 464, 472; see J.C. Penney Co. v. Superior Court (1959) 52
Cal.2d 666, 670.)
The Court of Appeal did not consider whether subdivision (c) of section 583.340
applied to those time periods in which a partial stay was in effect because it found those
time periods came within subdivision (b). We will remand the matter to the Court of
Appeal to consider whether the trial court abused its discretion in not excluding any or all
of the time periods under subdivision (c), including those periods the Court of Appeal
15
had addressed previously, and whether any such exclusions would make the total elapsed
time less than five years.
III. DISPOSITION
The judgment of the Court of Appeal is reversed and the matter is remanded to the
Court of Appeal for further proceedings consistent with this opinion.
CHIN, J.
WE CONCUR:
CANTIL-SAKAUYE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J

16


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Bruns v. E-Commerce Exchange, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 172 Cal.App.4th 488
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S172684
Date Filed: February 28, 2011
__________________________________________________________________________________

Court:

Supreme
County: Los Angeles
Judge: Carolyn B. Kuhl

__________________________________________________________________________________

Counsel:

Law Offices of Kevin M. Tripi and Kevin M. Tripi for Plaintiff and Appellant.

Horvitz & Levy, Bradley S. Pauley, Robert H. Wright; Bremer Whyte Brown & O‟Meara, Nicole Whyte, Stephanie
N. Rachel and Alison Hurley for Defendant and Respondent E-Commerce Exchange, Inc.

Duane Morris, Max H. Stern, W. Andrew Miller and Jessica E. La Londe for Defendants and Respondents CSB
Partnership, Chris & Tad Enterprises, CSB & Ellison, LLC, CSB & Hinckley, LLC, CSB & Humbach, LLC, CSB &
McCray, LLC, and CSB & Perez, LLC.

Quinn Emanuel Urquhart Oliver & Hedges, Jon Steiger, G. Lisa Wick, David E. Azar, Andrea L. Manka and Jon
Cederberg for Defendant and Respondent Flagstar Bank, FSB.

Casello & Lincoln and James H. Casello for Defendants and Respondents Clayton Shurley, Elliot McCrosky, Daniel
Quon and Fax.com, Inc.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Kevin M. Tripi
Law Offices of Kevin M. Tripi
2030 Main Street, Suite 1040
Irvine, CA 92614
(949) 833-9112

Max H. Stern
Duane Morris
Spear Tower, One Market Plaza, Suite 2200
San Francisco, CA 94105-1127
(415) 957-3000


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case includes the following issue: Does a stay of discovery constitute a stay of the action within the meaning of Code of Civil Procedure section 583.340, subdivision (c), such that the period during which discovery was stayed should be excluded in determining the time within which the action had to be brought to trial?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 02/28/201151 Cal. 4th 717, 248 P.3d 1185, 122 Cal. Rptr. 3d 331S172684Review - Civil Appealsubmitted/opinion due

Parties
1Bruns, Dana (Plaintiff and Appellant)
Represented by Kevin Mark Tripi
Law Office of Kevin M. Tripi
2030 Main Street, Suite 1040
Irvine, CA

2E-Commerce Exchange, Inc. (Defendant and Respondent)
Represented by Stephanie Nicole Rachel
Bremer Whyte Brown & O'Meara, LLP
20320 S.W. Birch Street, 2nd Floor
Newport Beach, CA

3E-Commerce Exchange, Inc. (Defendant and Respondent)
Represented by Robert H. Wright
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA

4Chris & Tad Enterprises (Defendant and Respondent)
Represented by Max H. Stern
Duane Morris, LLP
One Market Street
Spear Tower, Suite 2000
San Francisco, CA

5Clayton Shurley's Texas BBQ (Defendant and Respondent)
Represented by James Herbert Casello
Casello & Lincoln
1551 N. Tustin Avenue, Suite 480
Santa Ana, CA

6CSB & Ellison (Defendant and Respondent)
Represented by Max H. Stern
Duane Morris, LLP
One Market Street
Spear Tower, Suite 2000
San Francisco, CA

7CSB & Hinckley (Defendant and Respondent)
Represented by Max H. Stern
Duane Morris, LLP
One Market Street
Spear Tower, Suite 2000
San Francisco, CA

8CSB & Humbach (Defendant and Respondent)
Represented by Max H. Stern
Duane Morris, LLP
One Market Street
Spear Tower, Suite 2000
San Francisco, CA

9CSB & McCray (Defendant and Respondent)
Represented by Max H. Stern
Duane Morris, LLP
One Market Street
Spear Tower, Suite 2000
San Francisco, CA

10CSB & Perez (Defendant and Respondent)
Represented by Max H. Stern
Duane Morris, LLP
One Market Street
Spear Tower, Suite 2000
San Francisco, CA

11CSB Partnership (Defendant and Respondent)
Represented by Max H. Stern
Duane Morris, LLP
One Market Street
Spear Tower, Suite 2000
San Francisco, CA

12Fax.com (Defendant and Respondent)
Represented by James Herbert Casello
Casello & Lincoln
1551 N. Tustin Avenue, Suite 480
Santa Ana, CA

13Flagstar Bank (Defendant and Respondent)
Represented by David E. Azar
Quinn Emanuel Urquhart Oliver & Hedges, LLP
865 S. Figueroa Street, 10th Floor
Los Angeles, CA

14McCrosky, Elliott (Defendant and Respondent)
Represented by James Herbert Casello
Casello & Lincoln
1551 N. Tustin Avenue, Suite 480
Santa Ana, CA

15Optometrist at South Coast Plaza (Defendant and Respondent)
Represented by James Herbert Casello
Casello & Lincoln
1551 N. Tustin Avenue, Suite 480
Santa Ana, CA

16Quon, Daniel (Defendant and Respondent)
Represented by James Herbert Casello
Casello & Lincoln
1551 N. Tustin Avenue, Suite 480
Santa Ana, CA


Opinion Authors
OpinionJustice Ming W. Chin
ConcurChief Justice Tani Cantil-Sakauye

Dockets
May 4 2009Petition for review filed
Defendant and Respondent: CSB PartnershipAttorney: Max H. Stern Defendant and Respondent: Chris & Tad Enterprises Defendant and Respondent: CSB & Ellison Defendant and Respondent: CSB & McCray Defendant and Respondent: CSB & Hinckley Defendant and Respondent: CSB & Humbach Defendant and Respondent: CSB & Perez  
May 5 2009Record requested
 
May 5 2009Joinder to petition filed
Defendant and Respondent: E-Commerce Exchange, Inc.Attorney: Robert H. Wright  
May 4 2009Joinder to petition filed
Defendant and Respondent: Flagstar BankAttorney: David E. Azar  
May 7 2009Received Court of Appeal record
 
May 22 2009Answer to petition for review filed
Plaintiff and Appellant: Bruns, DanaAttorney: Kevin Mark Tripi  
Jun 1 2009Reply to answer to petition filed
Defendant and Respondent: CSB PartnershipAttorney: Max H. Stern Defendant and Respondent: Chris & Tad Enterprises Defendant and Respondent: CSB & Ellison Defendant and Respondent: CSB & McCray Defendant and Respondent: CSB & Hinckley Defendant and Respondent: CSB & Humbach Defendant and Respondent: CSB & Perez  
Jun 18 2009Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including July 31, 2009, or the date upon which review is either granted or denied.
Jun 29 2009Note:
  Requested remaining volumes via overnight.
Jun 30 2009Received Court of Appeal record
 
Jul 22 2009Petition for review granted
  George, C.J., was absent and did not participate. Votes: Baxter, A.C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ.
Aug 3 2009Certification of interested entities or persons filed
  Clayton Shurley's Texas BBQ, et al, respondents, James Casello, counsel
Aug 4 2009Certification of interested entities or persons filed
  E-Commerce Exchange, et al, respondents, Robert Wright, counsel
Aug 5 2009Certification of interested entities or persons filed
  Dana Bruns, appellant, Kevin Tripi, counsel
Aug 6 2009Request for extension of time filed
  for respondent E-Commerce Exchange to file the opening brief on the merits, to 10/5/09.
Aug 6 2009Request for extension of time filed
  for respondents CSB Partnership, Chris & Tad Ent., CSB & Ellison, CSB & Hinkckley, CSB & Humbach, CSB & McCray and CSB & Perez to file the opening brief on the merits, to 9/21/09
Aug 6 2009Certification of interested entities or persons filed
  CSB Partnership, et al respondents, Max Stern, counsel
Aug 7 2009Certification of interested entities or persons filed
  Flagstar Bank, et al., respondents Jon Cenderberg, counsel
Aug 13 2009Extension of time granted
  On application of respondents CSB Partnership, et al. and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 21, 2009.
Aug 13 2009Extension of time granted
  On application of respondent E-Commerce Exchange, Inc.and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including October 5, 2009.
Sep 21 2009Opening brief on the merits filed
Defendant and Respondent: CSB PartnershipAttorney: Max H. Stern Defendant and Respondent: Chris & Tad Enterprises Defendant and Respondent: CSB & Ellison Defendant and Respondent: CSB & McCray Defendant and Respondent: CSB & Hinckley Defendant and Respondent: CSB & Humbach Defendant and Respondent: CSB & Perez  
Sep 23 2009Filed:
  Joinder in opening brief on the merits by respondent Flagstar Bank, filed by counsel David Azar. [Joining opening brief/merits filed by CSB Partnership et al.]
Oct 6 2009Opening brief on the merits filed
Defendant and Respondent: E-Commerce Exchange, Inc.Attorney: Robert H. Wright   timely per crc 8.25b
Oct 9 2009Request for extension of time filed
  and permission to file a single consolidated answer brief on the merits in excess of the 14000 word limitation. Dana Bruns, Appellant by Kevin M. Tripi, counsel
Oct 15 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's consolidated answer brief on the merits is hereby extended to and including December 4, 2009. The answer brief on the merits must not exceed 28,000 words.
Nov 30 2009Answer brief on the merits filed
Plaintiff and Appellant: Bruns, DanaAttorney: Kevin Mark Tripi   Consolidated Answer/Brief/Merits
Nov 30 2009Request for judicial notice filed (Grant or AA case)
Plaintiff and Appellant: Bruns, DanaAttorney: Kevin Mark Tripi  
Dec 11 2009Request for extension of time filed
  for respondents CSB, et al., to file the reply brief on the merits, to 1/20/10
Dec 11 2009Request for extension of time filed
  for respondent E-Commerce Exchange to file the reply brief on the merits, to 1/20/10
Dec 17 2009Extension of time granted
  On application of respondent E-Commerce Exchange, Inc. and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including January 21, 2010.
Dec 17 2009Extension of time granted
  On application of respondents CSB Partnership, et al. and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including January 21, 2010.
Jan 21 2010Reply brief filed (case not yet fully briefed)
Defendant and Respondent: CSB PartnershipAttorney: Max H. Stern Defendant and Respondent: Chris & Tad Enterprises Defendant and Respondent: CSB & Ellison Defendant and Respondent: CSB & McCray Defendant and Respondent: CSB & Hinckley Defendant and Respondent: CSB & Humbach Defendant and Respondent: CSB & Perez  
Jan 22 2010Reply brief filed (case fully briefed)
Defendant and Respondent: E-Commerce Exchange, Inc.Attorney: Robert H. Wright   (CRC, rule 8.25(b)-FedEx)
Dec 1 2010Case ordered on calendar
  to be argued Wednesday, January 5, 2011, at 9:00 a.m., in San Francisco
Dec 8 2010Note: Mail returned (unable to forward)
  Calendar notice for James Casello. Address updated per State Bar website to Suite 480 (from Suite 850) at same street address.
Dec 28 2010Request for judicial notice granted
  The request for judicial notice, filed on November 30, 2009, is granted.
Jan 5 2011Cause argued and submitted
 
Feb 25 2011Notice of forthcoming opinion posted
  To be filed on Monday, February 28, 2011 at 10 a.m.

Briefs
Sep 21 2009Opening brief on the merits filed
Defendant and Respondent: CSB PartnershipAttorney: Max H. Stern Defendant and Respondent: Chris & Tad Enterprises Defendant and Respondent: CSB & Ellison Defendant and Respondent: CSB & McCray Defendant and Respondent: CSB & Hinckley Defendant and Respondent: CSB & Humbach Defendant and Respondent: CSB & Perez  
Oct 6 2009Opening brief on the merits filed
Defendant and Respondent: E-Commerce Exchange, Inc.Attorney: Robert H. Wright  
Nov 30 2009Answer brief on the merits filed
Plaintiff and Appellant: Bruns, DanaAttorney: Kevin Mark Tripi  
Jan 21 2010Reply brief filed (case not yet fully briefed)
Defendant and Respondent: CSB PartnershipAttorney: Max H. Stern Defendant and Respondent: Chris & Tad Enterprises Defendant and Respondent: CSB & Ellison Defendant and Respondent: CSB & McCray Defendant and Respondent: CSB & Hinckley Defendant and Respondent: CSB & Humbach Defendant and Respondent: CSB & Perez  
Jan 22 2010Reply brief filed (case fully briefed)
Defendant and Respondent: E-Commerce Exchange, Inc.Attorney: Robert H. Wright  
Brief Downloads
application/pdf icon
s172684-1-respondents-csb-partnership-petition-for-review.pdf (775539 bytes) - Respondents CSB Partnership Petition for Review
application/pdf icon
s172684-2-respondent-exchange-joinder-to-petition-for-review.pdf (518843 bytes) - Respondent Exchange Joinder to Petition for Review
application/pdf icon
s172684-3-respondent-fsb-joinder-to-petition-for-review.pdf (417599 bytes) - Respondent FSB Joinder to Petition for Review
application/pdf icon
s172684-4-appellants-answer-to-petitiion-for-review.pdf (190722 bytes) - Appellants Answer to Petition for Review
application/pdf icon
s172684-5-respondents-answer-to-petition-for-review.pdf (226469 bytes) - Respondents Answer to Petition for Review
application/pdf icon
s172684-6-respondents-csb-partnership-brief-on-the-merits.pdf (573166 bytes) - Respondents CSB Partnership Brief on the Merits
application/pdf icon
s172684-7-respondent-exchange-opening-brief-on-the-merits.pdf (569521 bytes) - Respondent Exchange Opening Brief on the Merits
application/pdf icon
s172684-8-appellants-consolidated-answer-brief-on-the-merits.pdf (975533 bytes) - Appellants Consolidated Answer Brief on the Merits
application/pdf icon
s172684-9-appellants-request-for-judicial-notice.pdf (6794956 bytes) - Appellants Request for Judicial Notice
application/pdf icon
s172684-10-respondents-csb-partnership-brief-on-the-merits.pdf (332917 bytes) - Respondents CSB Partnership Brief on the Merits
application/pdf icon
s172684-11-respondent-exchange-reply-brief-on-the-merits.pdf (340106 bytes) - Respondent Exchange Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2012
Annotated by Courtney Quiros

 

Case Annotation: Bruns v. E-Commerce Exchange, Inc. (S172684)

Facts:

The plaintiff Dana Bruns filed a lawsuit on February 22, 2000 alleging that defendants E–Commerce Exchange, Inc., Flagstar Bank, Clayton Shurley's Texas BBQ, and Does 1 through 500 violated the Telephone Consumer Protection Act by transmitting advertisements via telephone facsimile machine. On November 22, 2006, one defendant filed a motion to dismiss arguing that plaintiff Bruns had failed to bring the action to trial within five years of its commencement as required under section 583.310 of the California Code of Civil Procedure. Bruns countered that under sections 583.340(b) or 583.340(c) of the same code, certain periods of time in which litigation was stayed must be excluded in calculating the five-year period. Following the parties’ briefing, the trial judge granted the defendant’s motion to dismiss.

Bruns appealed the decision and the Court of Appeals reversed the dismissal holding that under section 583.340(b), the periods of time in which a partial stay of proceedings was granted must be excluded when calculating the five-year period. As a result, the mandatory dismissal of Bruns’ action was reversed. Judge Turner dissented arguing that evidence of legislative intent suggested that section 583.340 should only apply to a complete stay of all proceedings. The Supreme Court of California granted review.

Procedural History:

In 2000, plaintiff Bruns brought an action against defendants for sending unsolicited advertisements to telephone facsimile machines in the Superior Court of Orange County. The case was transferred to the Los Angeles Superior Court. The trial court found the suit to be subject to mandatory dismissal for failure to bring action to trial within five years. Plaintiff appealed and the Court of Appeals, Second Appellate District, Division Five (California) held that a partial stay of an action constitutes a stay of the prosecution of the action within the meaning of section 583.340(b), and that the trial court was wrong to dismiss the action. After the Court of Appeals reversed the dismissal of plaintiff Bruns’ suit, defendants sought review of a judgment.

Issues:

Does the tolling of the five-year period in which a case must be brought to trial under section 583.310 of the California Code of Civil Procedure apply only to a complete stay of proceedings or does or does a partial stay of specific proceedings also toll the of the five-year period?

Holding:

The “stayed or enjoined” tolling provision for the five-year period to bring an action to trial codified in California Code of Civil Procedure § 583.310 only applies when the stay encompasses all proceedings in the action, and thus does not apply to partial stays under § 583.340(b). The trial court has discretion to determine whether to exclude time periods during which a partial stay was in effect from the five-year period under § 583.340(c).

Analysis:

The court began by analyzing the sections of the Code of Civil Procedure at issue. Section 583.310 offers that “an action shall be brought to trial within five years after the action is commenced against the defendant.” Section 583.340 then states conditions that are not included in the determination of the five year period including: (a) The jurisdiction of the court to try the action was suspended. (b) Prosecution or trial of the action was stayed or enjoined. (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.

There was no disagreement that plaintiff’s lawsuit initiated on February 22, 2000 was an “action” within the meaning of the code. The court also noted that both parties agreed that the action had not been brought to trial within five years of that date. The California Supreme Court reviewed the interpretation of section 583.340(b) de novo. Considering the statute, the court found that the actual language does not definitively state that a partial stay is excluded from the five-year period because it only refers to a “stay.” The court rejected Bruns’ argument that the California Court of Appeal for the Second District in Holland v. Dave Altman’s R.V. Center defined a “stay” as “an indefinite postponement of an act of the operation of some consequence, pending the occurrence of a designated event” or a “suspension of the case or some designated proceedings within it.” The court distinguished Holland finding that it did not address the case where prosecution of a designated proceeding other than a trial action was stayed under section 583.340(b), but rather instances in which a case could not be brought to trial.

As a result of the ambiguity of the term “stay,” the court turned its attention to the term “prosecution” concluding that in its broadest interpretation it encompasses all proceedings in an action (citing 32 Cyclopedia of Law & Procedure 727 (1909)). However, the court rejected the Court of Appeals’ contention that Ray Wong v. Earle C. Anthony, Inc. [Ray Wong v. Earle C. Anthony, Inc., 199 Cal. 15 (1926)] and Melancon v. Superior Court support this broad reading of “prosecution” as including every step from the commencement of an action to the final adjudication. The court distinguished these cases, asserting that neither addressed the issue of whether only a complete stay of all the proceedings initiates the five-year period in which a case must be brought to trial.

Turning to the legislative history and intent, the court determined that section 583.340(b) read together with section 583.340(c) articulates a bright-line rule where only times in which all proceedings in action are stayed are calculating into the five-year time period. According to the court, trial courts have discretion under 583.340(c) to exclude other periods, such as partial stays, where it finds that bringing the action to trial was “impossible, impracticable, or futile.” If a complete stay (as contemplated in subsection (b)) is effectuated, it is obviously “impossible” to bring the case to trial. However, partial stays are different and may or may not make the action “impossible, impracticable, or futile.”

In addition, the court compared the statute’s language to another statute, California Code of Civil Procedure § 583.210, that the legislature passed at the same time. This section explains the time frame during which the summons and complaint must be served. Similar to the statute the court was considering, in this one the legislature had also enacted a provision delineating exclusions for determining the time period within which the summons and complaint must be served. Section 583.240 (b) excludes time where the “prosecution of the action or proceedings in the action was stayed.” The inclusion of the phrase “or proceedings” indicated that the legislature thus distinguished between this partial stay as opposed to a complete stay. From the fact that the legislature included the term “or proceedings” in one provision but not in another provision of the same bill, the court concluded that the legislature intended section 583.340(b) to refer only to a complete stay of all proceedings.

The legislative history of section 583.340(b) and other 1984 statutes further bolstered the court’s argument that 583.340(b) only refers to a complete stay of all proceedings. The court referenced the California Law Revision Commission’s purpose to “clarify ambiguities in the law, to bring the statute into conformity with case law interpreting them, and to reconcile discrepancies in statutes and cases” in support of this conclusion. In addition, the Law Review Commission’s comment to section 583.340(b) said that the statute codified existing case law and cited only one case, Marcus v. Superior Court. Marcus involved a complete stay of all proceedings and therefore, the court noted, subsection (b) applies only in instances when all proceedings in an action are stayed.

Finding that section 583.340(b) applies only to complete stays of all proceedings in an action, the court turned to analysis of section 583.340(c). The court argued that partial stays are governed by this subsection which excludes any time period that makes it “impossible, impracticable, or futile” to bring the case to trial. Under subsection (c), the trial court has to consider all the circumstances in the individual case, including the acts and conducts of the parties and the nature of the proceedings. The “critical factor” in applying these exceptions to a given factual situation, according to the court, is whether the plaintiff exercised “reasonable diligence in prosecuting his or her case.” Plaintiff's reasonable diligence is not enough alone to preclude an involuntary dismissal, and the court suggested that delays due to ordinary “incidents of proceedings, like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on the court's calendar are not within the contemplation of these exceptions.” This fact-specific inquiry was deemed a matter best left to the trial court.

The court reversed the judgment of the Court of Appeals and held that section 583.340(b) only excluded a complete stay of all proceedings from the five-year time limit in which a plaintiff must bring an action to trial. The plaintiff Bruns thus could not rely on section 583.340(b) to exclude partial stays when calculating the five-year time period. The court also held that these partial stays would correctly be governed, if at all, under section 583.340(c). As a result, the court remanded the question of whether section 583.340(c) applied to the time periods that Bruns sought to exclude to the Court of Appeals.

 

Tags: pretrial procedure, involuntary dismissal, want of prosecution, failure to prosecute, mandatory time for bringing action to trial, impossibility, impracticality, or futility of proceeding, stay, stayed, stay of proceedings, period of time, computation of time, unsolicited advertisements, telephone facsimile, tolling provision, limitation of action, statute of limitations, California Code of Civil Procedure §§ 583.310 and 583.340, California Code of Civil Procedure § 583.210

 

Parallel Citations

51 Cal.4th 717

248 P.3d 1185

11 Cal. Daily Op. Serv. 2622

2011 Daily Journal D.A.R. 3134

 

Justices:

Opinion by CHIN

Concurring: CANTIL–SAKAUYE, C.J., KENNARD, BAXTER, WERDEGAR, MORENO, and CORRIGAN, JJ.

 

Key Related Cases/Cited Cases:

 

California Code of Civil Procedure §§ 583.310 and 583.340

 

California Code of Civil Procedure § 583.210

Holland v. Dave Altman’s R.V. Center, 271 Cal. Rptr. 706 (1990).

 

32 Cyclopedia of Law & Procedure 727 (1909)). (google scholar)

Melancon v. Superior Court (at SCOCAL)

 

Marcus v. Superior Court (at Justia)

 

Ray Wong v. Earle C. Anthony, Inc., 199 Cal. 15 (1926))

 

California Law Revision Commission

Recent Press:

Law Review:

Jaspreet Kaur, Digest: Bruns v. E-Commerce Exchange, Inc., 15 Chap. L. Rev. 693 (2012).

California Family Law Report Article:

Briefly Noted: In Reversal, California Supreme Court Holds That a Partial Stay of Proceedings Does Not Toll 5-Year Period For Bringing Case to Trial, But Trial Court May Determine That Partial Stay Made Doing So Impossible, Impracticable, or Futile (Briefly Noted, 2011 Cal. Fam. Law Rep. 11779 (2011)).

 

Cross Link:

Bruns v. E-Commerce Exchange, Inc. (at FindLaw)

 

 

Courtney Quiros